Care Parking at Stockport Peel Centre

crafty_bison

Hello everyone,

Firstly thank you for all the contributions to the many threads I have read in this forum. It is a daunting and technical topic, and not easy to approach. Please can I detail my specific case, and check that my planned next actions are the right ones to take? Thank you.

Here are the events so far:

1) A PCN was issued by Care Parking in relation to an alleged offence on 23 March 2021. The alleged offence is Failure to Pay For Full Duration of Stay.

2) The PCN is dated 30 March 2021.

3) The landowner (Peel Retail Parks) has not replied to my emails asking for the PCN to be cancelled. (Most of the email addresses available online for employees of this company are no longer valid).

4) I appealed to Care Parking on 13 April 2021 using the form on their website. I used the template appeal provided on this forum, with no changes. I have not at any stage identified the driver. 

5) Care Parking responded to my appeal on 18 May 2021. They’ve rejected it. Their grounds are (inter alia):

a)     That my car entered the site at time X and left at time Y; these times are 55 minutes apart.

b)     That the contractual warning signs state: “‘IN ORDER TO PARK IN THIS CAR PARK PLEASE OBSERVE THE FOLLOWING CONDITIONS: Parking Tariffs Apply. Tariffs apply between 06:00 – 17:00 HRS Monday – Saturday (Including Bank Holidays)”.

c)     That there are “approximately 70” signs in the car park displaying its T&Cs.

d)     That no ticket was purchased.

e)     That there are 9 pay and display machines all with correct signage.

f)      That the pay and display machines were used over 2,300 times on that date.

g)     That although there is a grace period, it was exceeded.

 

6) They have stated that “The Notice to Keeper was issued through ANPR Cameras, therefore the liability of the charge is with the registered keeper of the vehicle”, and that “the Protection of Freedoms Act 2012 (POFA 2012) covers the requirements of the liability of the charge with regard to the registered keeper. If the name of the driver is not supplied, the POFA 2012 allows Care Parking to pursue the registered keeper for payment of the PCN”.

7) Regarding the evidence I’ve asked for, they’ve said “If you wish to view the Contractual Warning Signs in place at this location, you will need to re visit the car park”, and “Your further demands for evidence are only required to be provided to the BPA and DVLA upon request, we will therefore not be providing you with this commercial in confidence information”. To be clear, they have not supplied any images of the signage.

8) They have provided images that they claim show my car entering and exiting the site. The images are time-stamped. However, it is not possible in my view to discern from the images where they have actually been taken.

From my reading of the forum advice, I should now submit an appeal to POPLA. This is where I am struggling: please could anyone advise if there are obvious grounds in the information I’ve provided on which I should construct this appeal? I am a bit lost on where to begin. I’ve searched the forum for "failure to pay for full duration" popla, but there don’t seem to be any results since 2017, which I’m sure I’ve seen on here is too old to follow. I've read up on cases involving Care Parking, but they are all old. I've used the links in the Newbies sticky, but they appear to recommend wording that I think may be irrelevant (references to Beavis etc?) - sorry if I'm wrong. I’ve also read up on more recent cases, but can’t seem to find anything directly relevant. Sorry if I have missed a better way to search the forum, I haven’t used it regularly for years.

I must have missed something, is there a simple step by step on how to write the POPLA appeal?

Umkomaas

I must have missed something, is there a simple step by step on how to write the POPLA appeal?

Start with the NEWBIES FAQ sticky, third post, where you will find ready written template appeal points around which to build your POPLA appeal. 

If you didn't pay sufficient to cover the stay, you're looking for technical points on which to base your appeal. Check that Care Parking have PoFA compliant paperwork, the dates you've given above don't suggest there's any get out of jail opportunity there.  You also need to be looking at signage, landowner authority, BPA CoP breaches. 

https://www.parkingcowboys.co.uk/keeper-liability/

https://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

KeithP

crafty_bison said:

Is there a simple step by step on how to write the POPLA appeal?

Yes there is - in the third post of the NEWBIES thread.

crafty_bison

KeithP said:

crafty_bison said:

Is there a simple step by step on how to write the POPLA appeal?

Yes there is - in the third post of the NEWBIES thread.

Thank you. So, going from the links beneath the "near template state" paragraph, is the suggestion to copy and paste the relevant grounds for appeal? Even when, such as in the "near template" provided on signage, this is from 2016? Sorry for sounding ignorant here, I am just struggling to follow.

KeithP

Yes, that's exactly what you do.

You can be sure that the information in the NEWBIES thread is as up to date as it can be. For example, if there was a more pertinent text on signage then that would be pointed to from the NEWBIES thread.

crafty_bison

Thank you, KeithP. I will complete my draft and post it shortly. While I do so, I have noticed that the "Parking Charge Notice" I initially received does not contain the words "Notice to Keeper"; does this matter, or can it still be deemed one? Otherwise, it seems to be compliant.

KeithP

crafty_bison said:

Thank you, KeithP. I will complete my draft and post it shortly. While I do so, I have noticed that the "Parking Charge Notice" I initially received does not contain the words "Notice to Keeper"; does this matter, or can it still be deemed one? Otherwise, it seems to be compliant.

The first notice sent to the keeper is the Notice to Keeper, whatever it says.

Have a look at the example PoPLA appeals linked from that third post of the NEWBIES thread. You will see that there are some fully illustrated tomes running to twenty pages or more.

You can find more example PoPLA appeals in the POPLA Decisions thread - another 'announcement' thread at the top of the index page. Start reading the latest posts and follow the links (where available) back to the writer's thread.

crafty_bison

Here is my draft appeal to POPLA, which I have compiled using (a) the links provided in the "newbie" thread referred to (clauses 3, 5 and 6), and (b) my own interpretations of some of the legislation, and follow-up searching on related websites (clauses 1, 2 and 4). These latter points may be weak or held not to be relevant, if so my apologies, but I thought I should at least give it a go at reading and interpreting the rules myself!

I would be grateful for your thoughts and builds.
(I have split it due to post character limit.)

1.      No evidence that car was parked on relevant land

The Protection of Freedoms Act (POFA) 2012 holds that “The notice must…specify the vehicle, the relevant land upon which it was parked and the period of parking to which the notice relates”. I do not believe that the notice is compliant because there is no evidence provided that the car was parked on relevant land. I have been provided with photographs of my car that purport to have been taken at or near the “Peel Center” (sic) on unidentifiable portions of road, and no further evidence. 

 

2.      No evidence that the act committed did constitute parking

Again, POFA 2012 holds that “The notice must…specify the vehicle, the relevant land upon which it was parked and the period of parking to which the notice relates”. I do not believe that the notice is compliant because there is no evidence provided that the car was parked. Specifically, per the legal dictionary ‘Words and Phrases Legally Defined’ (5th edn, 2018) the act of parking is held to include leaving one’s car. It is disputed that any occupant of the car did in fact leave the car during the period cited.

 

3.     The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

 

I note that within POFA 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site is not sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

The claimant has alleged that there are many signs on display in the car park, but has declined to provide evidence of any of these signs having been on display on the date of the alleged transgression.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only: http://imgur.com/a/AkMCN

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges. Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case: http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide: http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here: http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2' letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3' or even larger.''

...and the same chart is reproduced here: http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case: http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

 

4.      The signs did not meet the requirements set down in the British Parking Association’s Code of Practice relating to signage, specifically relating to ANPR

 

Signage in car parks that use ANPR must identify for what purpose ANPR is being used. I have asked the claimant to provide evidence that its car park’s signage does so; however, the claimant has thus far declined to provide any such evidence. If the purpose of ANPR is to determine a given vehicle’s length of stay in the car park, in order that such vehicle’s driver or keeper may be pursued for a purported charge, this ought to be made clear and I submit that it was not.

 

crafty_bison

5.      The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

 

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
'There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.'

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

 

6.      No evidence of landowner authority

 

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner.

The contract and any 'site agreement' or 'User Manual' setting out details - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is authorised on the material date, to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d who has the responsibility for putting up and maintaining signs

e the definition of the services provided by each party to the agreement

7.    'Genuine customer' exemption criteria unevidenced and not explained to drivers.

 

This parking operator offered parking to shoppers of the retailers. The occupants of the car were genuine shoppers. I believe that this operator supplies a 'User Manual' or 'Site Manual' to all retailers which allows for 'genuine customers' to have their charges cancelled (regardless of whether a shopper overstayed).

It is noted that the contractual terms on the signage fail to advise customers of this secret clause or the ceiling of 'total spending' above which a parking charge will be cancelled, so visitors have no way of knowing these terms.

I contend that the occupants of the car did visit the retailers and as such met the criteria in the secret clause for the PCN to be cancelled, and if the operator disagrees I require sight of the full 'discretionary criteria' clause from the User Manual which forms a vital part of their contract with the landowner and agreement with the retailers. This will need to be a true copy and show the circumstances under which the operator will cancel a charge for a genuine customer, including any defined total spend limit where the clause applies.

POPLA please note: this is NOT a point of mitigation, this is a case of this operator failing to evidence that they have correctly applied the 'criteria' (whatever it might be) in the site/User Manual and if they cannot evidence that they did, then the parking charge cannot be considered 'properly given' at the point of refusing my appeal. A Site/User Manual sets out the criteria under which the parking enforcement operates from the retailers' informational point of view and it forms a vital part of the landowner contract which is relevant to this appeal.

Redx

there are very clear signs at the Peel Centre and were only installed a few years ago (2019) , and now its a pay on exit ( 0 - 2 hours is £1 ) , but your post doesnt mention anything about payment being made or not made (its free in the evenings and on sundays but not 6 days a week during the day, as they pointed out) , so was a payment made ? if yes, how long was paid for ? or was it bilking ?

if no , why not ? was the vehicle parked in the payment times, or the free times ? ( bilking ? )

what does the NTK PCN that arrived in the post say is the issue ? not enough time paid for ? strange when its a pay on exit car park , more likely non payment

did the NTK PCN comply with POFA ? yes or no

if yes , there is no point in putting in the driver not identified , or POFA aspects , in the Popla appeal ( those are only useful if the NTK failed to comply with POFA )

signage and landowner authority are the possible technical get outs, and POFA but only if it applies, the BPA CoP but only if any breaches occurred

july 2019 is when it changed from Excel to Care Parking (2 years ago , so very recent)

https://forums.moneysavingexpert.com/discussion/6024797/good-riddance-excel-parking-at-peel-centre-stockport/p1

signage is shown here

https://www.peelretailparks.co.uk/new-news-1/2019/6/7/smart-pay-car-parking-introduced-at-stockport-retail-park

discussion thread here (june 2020)

https://forums.moneysavingexpert.com/discussion/6159198/care-parking-pcn-peel-centre-stockport

if payment was not made in the chargeable period monday to saturday, plus if Care complied with POFA , the keeper is probably liable and a PoPLA appeal would probably fail, making the full £100 default daily tariff payable by the keeper

personally I suspect that they do have landowner authority signed 2 years ago and the signage does IMHO comply with the BPA CoP , meaning the main 2 points could be losers and POFA a non starter , not paying a payment on a payment on exit car park is bound to cause trouble and cost money (which seems like it here)

1505grandad

Also when quoting from the BPA CoP make sure you are using the correct version applicable at the time of the parking event  -  in this case V8 Jan 2020